The jury deliberating a sentence of life in prison or the death penalty for Pittsburgh synagogue shooter Robert Bowers left for the day on Tuesday without reaching a verdict.
Jurors began their decision-making process about 9:30 a.m. Tuesday. They came back with two questions over the course of the day and left around 4:30 p.m.
In order for the shooter to receive the death penalty, jurors must be unanimous. A split jury means Bowers will spend life in prison.
U.S. District Judge Robert J. Colville denied two separate motions by the defense for a mistrial on Tuesday morning.
The first came in a late Monday filing that accused prosecutors of misstating and misrepresenting the law, facts and evidence in their closing arguments.
The defense cited at least 19 statements in U.S. Attorney Eric Olshan’s closing argument they say were improper and at least 35 in Assistant U.S. Attorney Troy Rivetti’s rebuttal.
They argued that Mr. Rivetti’s rebuttal to defense closings amounted to “a brand new argument” that went far outside the scope of defense attorney Judy Clarke’s argument.
Judge Colville denied the motion for a mistrial and declined to give specific curative instructions to the jury. He instead reminded them that closing arguments are not evidence.
The Oct. 27, 2018 shooting remains the worst antisemitic attack in U.S. history.
Three congregations worshipped at the synagogue, a monolith at the corner of Shady and Wilkins avenues: Tree of Life, Dor Hadash, and New Light. Eleven people were killed: Joyce Fienberg, Richard Gottfried, Rose Mallinger, Jerry Rabinowitz, Cecil and David Rosenthal, Bernice and Sylvan Simon, Daniel Stein, Melvin Wax, and Irving Younger.
Around 9:35 a.m., jurors sent a question to Judge Colville — they wanted to be able to see the weapons taken from the synagogue — Bowers’ AR-15, three Colt handguns, and two law enforcement rifles.
The judge and attorneys on both sides agreed to display the firearms on a table in the courtroom. Jurors were permitted to look at them while attorneys sat in the gallery, away from the jurors.
Several minutes into the jury’s inspection of the weapons, federal public defender Elisa Long objected to the fact that a U.S. Marshal was conversing and answering questions posed by the jury. Judge Colville told jurors to refrain from talking to the marshals.
At the request of attorneys, Judge Colville swore in the marshal after jurors returned to the deliberation room. Attorneys requested he reiterate what he’d been asked and what he had answered.
The marshal, Joseph Klaus, said one juror asked where Bowers carried the handguns, and he hadn’t known the answer to that. Another asked how to load a shotgun, and the marshal answered. A third question related to whether the magazine in the box with the AR-15 went with that weapon.
Ms. Long again asked for a mistrial. Judge Colville denied that request but brought jurors back into the courtroom to tell them to disregard anything said to them by the marshals.
The series of events is evidence of just how unpredictable a criminal trial can be, said University of Pittsburgh law professor David Harris.
“One thing that the events of today help you understand is that a trial is not a static piece of paper or case that you read, it’s an ongoing, real time event unfolding, and sometimes in ways that are not predictable,” he said. “If you can have a mistrial motion out of an unexpected exchange of words with a marshal, you just don't know what can happen.”
He said while a misstep, he doesn’t believe it’s one to justify a mistrial, agreeing that the judge made the right call.
With the stakes as high as they are, the defense team is going to be sensitive to any type of extraneous comment made to jurors, said Bruce Antkowiak, a former federal prosecutor and defense attorney now teaching at St. Vincent College.
Jurors had a second question about 12:20 p.m. This one was in reference to two defense exhibits and whether they’d been entered into evidence. The exhibits were a social history developed for Bowers when he was admitted to Southwood Psychiatric Hospital and his discharge papers from the facility.
Jurors convicted Bowers of all 63 federal charges against him on June 16, and they deemed him eligible to be considered for the death penalty on July 13. In this final sentence-selection phase, jurors have heard what amount to final pitches from both sides as to why Bowers deserves death or, from the defense perspective, why he does not.
Prosecutors presented a series of aggravating factors — circumstances that raise the level of heinousness of the crime and make it deserving of the ultimate punishment. Jurors already deliberated on four of those factors in the eligibility phase: that Bowers killed multiple people; that he endangered others; that the victims were particularly vulnerable and that he planned and premeditated his crimes.
They’ve presented the jury with five more they say were proven over the past two weeks. They relate to the impact on the victims and injured survivors, the antisemitic nature of the crime, Bowers’ selection of his target, and his lack of remorse.
Defense attorneys for Bowers have presented their own evidence that they say mitigates some of the heinousness prosecutors sought to prove. They listed more than 100 mitigating factors, most of which revolve around Bowers’ mental illness, brain abnormalities and his genetic predisposition for such based on family history, as well as his traumatic childhood.
As jury deliberations pick up Wednesday morning, Mr. Antkowiak believes the jury will be meticulous because they know what’s at stake.
“These people are citizens from every walk of life, and up until this point in their lives, have never been empowered to make a decision like this,” he said. “They understand the importance of that decision. They're going to be very careful about it.”
First Published: August 1, 2023, 3:00 p.m.
Updated: August 2, 2023, 10:35 a.m.